Citation Nr: 1451369
Decision Date: 11/19/14 Archive Date: 11/26/14
DOCKET NO. 12-04 388 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
1. Entitlement to a disability rating in excess of 20 percent for service-connected thoracic sprain.
2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
C. Bosely, Counsel
INTRODUCTION
The Veteran had active military service from November 1973 to July 1977.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction of the claim was subsequently transferred to the RO in St. Petersburg, Florida.
The issue of entitlement to a TDIU has been raised as a component of the increased rating claim on appeal. Thus, it is presently in appellate status before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009).
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran when further action is required.
REMAND
The Veteran was last examined in February 2011 to evaluate the severity of back disability. At his Board hearing, he testified that he believes his back has gotten worse since that examination. See Hr'g Tr. 13. In light of these circumstances, the Board will remand the matter for a more contemporaneous examination.
Furthermore, the issue of entitlement to a TDIU has been raised by the Veteran, but this issue has not been developed by the AOJ. Accordingly, it too must be remanded.
Accordingly, the case is REMANDED for the following action:
1. Send the Veteran a letter advising him of the information and evidence needed to award a TDIU. The letter should also request that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in order to provide the information needed to substantiate the claim of TDIU.
The letter should also request that he provide the names, addresses, and approximate dates of treatment for any private (non-VA) health care providers who may have additional records involving treatment for his thoracic sprain. The letter should request that he complete an Authorization and Consent to Release Information (Release) for all identified records.
Also notify the Veteran that he may submit written statements from himself and/or from other people who have first-hand knowledge describing how his thoracic sprain affects him in his daily life
The Veteran should be provided an appropriate amount of time to submit this evidence.
2. Associate, physically or electronically, all pertinent, outstanding private records with the claims folder that the Veteran identifies. All efforts under this paragraph must include an initial request and, if the records are not received, at least one follow-up request (unless a response to the initial request makes clear that the records sought do not exist or that a follow-up request for the records would be futile).
If the Veteran does not provide any necessary Release, request that he obtain the records and provide them to VA.
3. Obtain all of the Veteran's relevant VA treatment records not already associated with the claims file dated after 2011. Continue associating such VA treatment records to the claims file on an ongoing basis until the case is recertified to the Board.
4. All attempts to fulfill the preliminary development specified in paragraphs 1-3 above should be documented in the claims file.
The Veteran should be also notified that he is always allowed to provide any sought after records himself, notwithstanding VA's inability to obtain the records.
5. Next, arrange for the Veteran to undergo a VA examination to evaluate the current severity of his thoracic sprain.
Accordingly, the examiner is asked to review all relevant records. Based on this review, the examiner is asked to provide an assessment of the current nature of the Veteran's thoracic sprain.
In doing so, the examiner is asked to describe the severity, frequency, and duration of all symptomatology associated with these disabilities, including separate description of all functional limitations present both (a) after repetition over time and (b) during flare-ups.
The examiner should also describe the severity of any neurologic impairment(s) associated with the thoracic sprain.
In doing so, the examiner is also asked to evaluate whether the Veteran's service-connected disability picture-whether due to a single disability or a cumulative effect of multiple disabilities-impairs his ability to meet the demands of a job, either sedentary or physical. This should include evaluation of the limitations and restrictions imposed by his service-connected impairments on such work activities as sitting, standing, walking, lifting, carrying, pushing, and pulling.
Please articulate the reasoning underpinning all medical opinions. A report of the examination should be prepared and associated with the Veteran's VA claims file.
6. Undertake any further action needed as a consequence of the development completed above, and then readjudicate the remanded issues with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement, include whether either issue should be referred for extraschedular consideration.
If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations. The Veteran should be afforded the appropriate time period to respond.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2014).
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MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).